WILL – The Essentials

WILL – The Essentials

There is nothing like leaving this world with the abundance of wealth to be inherited by family members with a hope that such wealth makes them happy and contribute to well being of family members.

But, often we come across that there is no concurrence among family members in the distribution of the estate bequeathed by a person on his death resulting into disputes and complexities.  It is said that “For the love of money is a root of all kinds of evil,” given that wealth is a well-known corrupter of mind which blinds human beings from being reasonable and many families are torn apart due to the disagreements among family members. Estate Planning can be used to bequeath the assets that can avoid disputes among family members and also perpetuate family values and protect estate for the benefit of future generations.

‘WILL’ is one of the most known testamentary documents which is used in bequeathing the estate of a person. But, just by making a WILL documenting the intentions of the person making the WILL does not ensure that the assets were inherited as per the provisions of the WILL. There are many cases in the court challenging the validity of the WILL. Therefore one needs to be aware of the essentials of the WILL and be prudent in executing the WILL to minimize or avoid the disputes in the execution of WILL.

A ‘WILL’ is a written document by which a person directs how his or her assets (estate) are to be distributed upon death. The following are the essentials, but not limited to, of the ‘WILL,’

  1. Testator: is a person who bequeaths his assets (estate) by a WILL
  2. Beneficiaries: are persons who inherit the assets bequeathed by a testator
  3. Executor: is a person who executes the requirement made in the WILL
  4. A declaration stating that such WILL is last and final WILL.
  5. Intentions for making WILL
  6. Identification of Estate and mode of acquisition of such estate
  7. Declaration of competency to make a WILL
  8. Provision for repayment of debts
  9. Provision for medical and final expenses
  10. Appointment of guardian for minor children
  11. Bequeathment of assets
  12. The Signature of the testator and two witnesses in the presence of each other.

A WILL can be modified during the life period of the testator by recording the modifications in a separate document known as ‘Codicil.’ A Will also can be cancelled by the testator during his life period. It is recommended to register the WILL with the jurisdictional registrar’s office, though registration of WILL is not mandatory. Registration of WILL does not provide any additional legitimacy but could be useful in avoiding the disputes.

A WILL comes into force on the death of the testator. Upon the demise of the testator, Executor appointed by a WILL shall apply to the jurisdictional court for Probate of the WILL.  Probate is the judicial process whereby a will is “proved” in a court of law and accepted as a valid public document that is the real last testament of the deceased. Probate is granted to an ‘executor’ appointed by the ‘WILL.’ If a WILL appoints no executor, letters of administration with the WILL annexed can be issued to the persons entitled to the administration of the estate of the deceased.

By making a will you can choose who you wish to inherit your assets, rather than this decision being made by the laws of intestacy. It will also make it easier for your loved ones to deal with your affairs when you are gone. Dying without a will adds all sorts of complications to the legal heirs and involves the cost, delay and disputes in the inheritance of the estate.

A Suresh,
Executive Director, PropSeva®
Chartered Trust & Estate Planner™  CERTIFIED FINANCIAL PLANNERCM